A/HRC/26/25
United Nations
General Assembly
Distr.: General
5 May 2014
Original: English
Human Rights Council
Twenty-sixth session
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Working Group on the issue of human rights
and transnational corporations and other business
enterprises*
Summary
In the present report, submitted pursuant to Human Rights Council resolution 17/4,
the Working Group reviews its strategic objectives, activities and outcomes of the past
three years and identifies challenges ahead.
*
Late submission.
GE.14-14100

A/HRC/26/25
Contents
2
Paragraphs
Page
I.
Introduction ............................................................................................................
1–2
3
II.
Strategic considerations and methods of work ........................................................
3–7
3
III.
Key activities, strategic interventions and outcomes ..............................................
8–82
4
A.
National action plans to implement the Guiding Principles ...........................
10–22
4
B.
Tracking business uptake ...............................................................................
23–31
7
C.
Exploring options to promote increased access to effective remedy .............
32–51
9
D.
Reflections on the annual Forum on Business and Human Rights ................
52–61
14
E.
Advocacy .......................................................................................................
62–65
16
F.
Communications ............................................................................................
66–74
17
G.
Capacity-building and guidance on the implementation
of the Guiding Principles ................................................................................
75–82
19
IV.
Looking ahead ........................................................................................................
83–87
20
V.
Conclusions and recommendations ........................................................................
88–96
21
A.
Conclusions ...................................................................................................
88–93
21
B.
Recommendations ..........................................................................................
94–96
22
A/HRC/26/25
I. Introduction
1.
The Working Group on the issue of human rights and transnational corporations and
other business enterprises was established by the Human Rights Council, through its
resolution 17/4, in June 2011. The Working Group has a broad mandate focused on
promoting the dissemination and effective and comprehensive implementation of all three
pillars of the Guiding Principles on Business and Human Rights for the implementation of
the United Nations “Protect, Respect and Remedy” Framework (A/HRC/17/31, annex). The
Working Group is also mandated to guide the annual Forum on Business and Human
Rights.
2.
This is the third report submitted to the Human Rights Council by the Working
Group. It comprises a review of the strategic objectives, activities and outcomes of the first
three years and identifies challenges ahead. 1
II. Strategic considerations and methods of work
3.
In its first report to the Human Rights Council (A/HRC/20/29), the Working Group
set out strategic considerations and priorities for the implementation of its mandate. Those
have informed the Working Group’s approach to identifying focus areas and its methods of
work for the implementation of its activities. The Working Group’s strategic priorities have
focused on the dissemination, implementation and embedding of the Guiding Principles.
4.
From the outset, the Working Group has noted that the scale and complexity of
implementing its mandate required a strategic approach to achieving global dissemination
of the Guiding Principles. While the unanimous endorsement of the Guiding Principles by
the Human Rights Council signalled a strong global political commitment, targeted efforts
were necessary in order to effectively disseminate them worldwide to all stakeholders.
Consequently, the Working Group has strived to reach out to new audiences, that is, to
reach States and business enterprises that have not previously been engaged in the business
and human rights agenda, by organizing and participating in regional and national events;
has sought to engage multipliers to disseminate the Guiding Principles to large groups, such
as business associations, lawyers’ associations and development and sustainability
platforms; and has worked with catalysts that focus on developing tools and guidance for
stakeholders on the implementation of the Guiding Principles.
5.
The Working Group has prioritized efforts towards the effective and comprehensive
implementation of the Guiding Principles. That has included engaging decision makers and
technical staff in States and business enterprises responsible for the concrete policy
commitments leading to the actual implementation of the Guiding Principles. Engagement
has also taken place with civil society and national human rights institutions, and with a
variety of initiatives at the national, regional and global levels. The Working Group has
promoted such efforts wherever possible and appropriate.2
6.
A further priority for the Working Group has been to maximize the reach of the
Guiding Principles by promoting the adoption or embedding of the Guiding Principles in
global, regional and national governance bodies. It has done so by engaging with
1
2
The report is accompanied by five addenda, containing the outcomes of specific work streams and
activities initiated by the Working Group, as well as the reports from the Working Group’s country
visits to Ghana and the United States of America.
See www.ohchr.org/Documents/Issues/Business/WGActivitiesAndEngagement.pdf.
3
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institutions that are able to play a significant role in requiring, or encouraging, States and
business enterprises to implement the Guiding Principles. These include regional
intergovernmental organizations, international financial institutions, international
employers and labour organizations, United Nations agencies and multi-stakeholder
initiatives.
7.
The Working Group has periodically revised its methods of work and has regularly
published information about its activities and engagement. 3 It has sought to pay particular
attention to the rights and needs of, as well as the challenges faced by, individuals from
groups or populations that may be at heightened risk of becoming vulnerable or
marginalized, and to the specific challenges that may be faced by women and men.
III. Key activities, strategic interventions and outcomes
8.
Within its mandate and the strategic considerations and priorities referred to in the
previous section, the Working Group has engaged in a wide range of activities and
projects.4
9.
The following section contains reflections on some of the Working Group’s key
activities and strategic interventions, as well as actual or expected outcomes and impacts
achieved.
National action plans to implement the Guiding Principles
A.
10.
National action plans are a common policy tool used by Governments in all regions
to set out priorities and programmed actions in specific policy areas. For example, in the
Vienna Declaration and Programme of Action (para. 71), the World Conference on Human
Rights recommended that “each State consider the desirability of drawing up a national
action plan identifying steps whereby that State would improve the promotion and
protection of human rights”.
11.
Throughout its mandate, the Working Group has called on States to develop national
action plans as a key tool for effective implementation of the Guiding Principles,5 while
acknowledging that implementing the Guiding Principles can take many forms, and that
one size does not fit all.
12.
Some Governments have launched national action plans to implement the Guiding
Principles,6 including Denmark,7 Italy,8 the Netherlands9 and the United Kingdom of Great
Britain and Northern Ireland,10 and others are reported to be developing such plans.
3
4
5
6
7
8
9
4
See www.ohchr.org/EN/Issues/Business/Pages/WorkingMethods.aspx.
See www.ohchr.org/EN/Issues/Business/Pages/WGEventsStatements.aspx.
See, for example, A/HRC/23/32, para. 71 (f) and A/HRC/WG.12/6/1, para. 5.
The 2011 corporate social responsibility policy update of the European Commission required the
development of national action plans for all European Union Member States. See European
Commission, “Communication from the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the Regions: a renewed EU
Strategy 2011–14 for Corporate Social Responsibility” (25 October 2011). Available from
http://ec.europa.eu/enterprise/policies/sustainable-business/files/csr/new-csr/act_en.pdf.
Available from www.ohchr.org/EN/Issues/Business/Pages/NationalActionPlans.aspx.
Ibid.
Available from www.globalgovernancewatch.org/docLib/201402121_dutch-national-action-plan-dec2013.pdf.
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13.
While the plans that have been launched to date take different forms, they amount to
policy-level documents that outline the commitments and plans of Governments to
implement the Guiding Principles at the national 11 and international level, including
through foreign policy initiatives. Alongside those developments, some States have
initiated processes that, although not labelled formally as national action plans, seek to
promote the implementation of the Guiding Principles and highlight the relevance of a
number of laws, regulations and policies to business and human rights issues.12
14.
Achieving actual implementation by States and business enterprises remains the
overriding challenge in the business and human rights agenda, as it is in the overall
international human rights law regime. At a structural level, a number of impediments need to
be overcome to achieve wider and more comprehensive State and business implementation.
At the same time, a number of opportunities exist that could bring about more rapid progress.
In its first report to the Human Rights Council (A/HRC/20/29), the Working Group identified
a number of incentives to implement the Guiding Principles. State incentives include the
opportunity to create sustainable and inclusive growth and to address the challenges posed by
globalization, such as the expanding reach and impact of business activities and the resulting
governance gaps, which have created a perception that Governments are failing to protect the
rights of vulnerable persons and ensure accountability. Possible business motivations range
from lowering risk and avoiding conflict to improving stakeholder relations and safeguarding
productivity. However, the Working Group also noted that current incentive structures were
neither inevitable nor fixed, and that they too often led to decisions that were detrimental to
the enjoyment of human rights. Recent empirical research by the Institute for Human Rights
and Business highlights further a number of such incentives, as well as disincentives, in the
“political economy” of States that influence government performance relating to human rights
and business.13 Commonly cited disincentives for States include lack of political will with
little voter interest in the subject; a perception of measures around human rights as an
economic constraint and cost; conflicts of interest and short-termism; lack of policy coherence
between government ministries; and allegations of protectionism. Commonly cited incentives
include meeting international legal obligations to protect human rights; providing a more
accountable trade–development nexus; providing greater clarity of expectations for business;
providing greater clarity for the role of embassies and more effective foreign policy; and
competitive advantage within the political economy of the State.14
15.
The Working Group considers that national action plans can provide a vehicle for
tackling disincentives and reinforcing the incentives that are relevant to effective State
performance with respect to meeting human rights obligations in the context of business
activities in a coherent and comprehensive manner. In particular, such plans:
10
11
12
13
14
Available from www.gov.uk/government/uploads/system/uploads/attachment_data/file/236901/
BHR_Action_Plan_-_final_online_version_1_.pdf.
Several Governments have also developed, or are in the process of developing, plans of action or
strategies for corporate social responsibility.
See, for example, United States of America, “U.S. Government approach to business and human
rights” (2013), available from http://photos.state.gov/libraries/korea/49271/july_2013/dwoa_USGApproach-on-Business-and-Human-Rights-updatedJune2013.pdf. See a more comprehensive
discussion of the document in A/HRC/26/25/Add.4.
See Institute for Human Rights and Business, State of Play – Human Rights in the Political Economy
of States: Avenues for Application. Available from www.ihrb.org/pdf/2014-03-18_State-of-Play_HRPolitical-Economy-States.pdf.
Ibid., p. 10.
5
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(a)
Trigger cross-functional coordination among departments in charge of
economic regulation and promotion, foreign policy, human rights and justice within
Governments;
(b)
May encourage constructive multi-stakeholder dialogue on business and
human rights issues that can be complex;
(c)
Allow for the identification of concrete national policy and regulatory options
for promoting the implementation of all three pillars of the Guiding Principles according to
a country’s most pressing priorities;
(d)
Set agreed processes in motion whereby States, in consultation with business
enterprises and civil society, can adjust and review plans over time;
(e)
May offer sufficient flexibility to respond to the range of business and human
rights challenges that different countries in different geographies may face;
(f)
Can provide greater transparency regarding the commitments of States and
allow States to exchange best practices and lessons learned;
(g)
May, in whatever form they take, offer a common format and language for
the implementation of the Guiding Principles that may be conducive to promoting
accountability, global alignment, “levelling of the playing field” and coordination among
States.
16.
The Working Group decided at its seventh session to make national action plans a
key strategic priority, noting that many States and other stakeholders have asked for
concrete guidance on how to proceed, and drew up a road map to support the development
of such plans (A/HRC/WG.12/7/1, para. 5). The road map includes an open consultation on
the strategic elements of national action plans in the implementation of the Guiding
Principles, held in February 2014; the launch of the online repository on State national
action plans;15 an open e-consultation on a draft set of essential substantive elements and
considerations for the development of national action plans; and a State survey to gather an
overview of and collect relevant existing practices by Governments.
17.
In addition, the road map includes: convening an expert workshop during the eighth
session of the Working Group in May 2014 to discuss a draft collection of essential
substantive elements that all national action plans should include; engaging with a key
initiative to develop tools to support the development of national action plans conducted by
the International Corporate Accountability Roundtable and the Danish Institute for Human
Rights, through participation in their Latin America and Asia-Pacific dialogue meetings, as
well as in a consultation with business representatives; 16 and complementing guidance
being developed by stakeholders by producing a guide on the process, substantive content
and review of national action plans, to be preliminarily presented at the annual Forum in
December 2014, reviewed in 2015 and finalized in 2016 after a pilot period envisaged to
begin after the launching of the guide in late 2014.
18.
Finally, the Working Group decided to focus on the topic of national action plans in
its report for submission to the General Assembly at its sixty-ninth session; in the report the
Working Group will provide details of its observations and further reflections on guidance
to support national action plans.
19.
The Working Group notes that a consensus is emerging with regard to the basic
process elements in developing a national plan of action. For example, the process should
15
16
6
See www.ohchr.org/EN/Issues/Business/Pages/NationalActionPlans.aspx.
See www.business-humanrights.org/Documents/icar-dihr-naps-project.
A/HRC/26/25
include meaningful participation and inclusive stakeholder consultation (involving business
and civil society) and it should involve a broad cross section of relevant government
ministries and agencies, as well as range of different business sectors. Further, any national
plan of action should focus on the material issues affecting the population, in particular
vulnerable groups, which underlie conflict between business and society.
20.
The Working Group also considers that an ongoing review and/or follow-up process,
both at the national and international levels, is necessary, and that it must involve civil
society. It notes that more expert guidance and analysis of early lessons on the
development, review and follow-up of national action plans are needed. The Working
Group intends to include reviews of the progress made in the development of national
action plans in its annual reports to the Human Rights Council.
21.
The understanding of what substantive elements should be included in national
action plans is less advanced than the understanding of the process elements. Thus the
Working Group considers the identification of and clearer guidance on such components of
national action plans to be of critical importance, warranting specific focus in the Working
Group consultation in May. Essential substantive elements already emphasized by the
Working Group and stakeholders include access to remedy (judicial and non-judicial);
public procurement; implementation by publicly owned and controlled enterprises; due
diligence requirements for business enterprises, such as in licensing processes, corporate
reporting, trade and investment; and development policies and frameworks.
22.
The baseline normative expectations are set by the Guiding Principles themselves;
the guidance provided by the Working Group will assist States and other relevant actors to
unpack the practical implications, as well as any implications on law and policy, to enable
more effective implementation. The Working Group looks forward to engaging with States
and other stakeholders in this process.
B.
Tracking business uptake
23.
The potential of the Guiding Principles will not be realized without business
enterprises actively engaging in efforts to implement their responsibility to respect human
rights, as set out in the Guiding Principles. The Working Group has therefore considered it
important to track business uptake of the Guiding Principles and to extend support, where
possible, to implementation efforts.
24.
In 2012, the Working Group commissioned a pilot corporate questionnaire on
business and human rights as a means to seek information on corporate awareness, uptake
and implementation of the Guiding Principles. 17 In 2013, the Working Group commissioned
another questionnaire as the second phase in the pilot initiative.18 The objectives of the
2013 questionnaire were to understand the progress in the dissemination of the Guiding
Principles among the business community; to highlight the implementation motivations and
challenges; and to understand the support that business enterprises need to implement their
corporate responsibility to respect human rights.
25.
A total of 153 business representatives responded to the 2013 questionnaire, which
represents an increase of 23.5 per cent from the 117 businesses representatives that
responded to the 2012 questionnaire. The key findings from the 2013 questionnaire include
the fact that the majority of the sampled businesses are aware of the Guiding Principles.
17
18
See A/HRC/23/32/Add.2. See also www.ohchr.org/EN/Issues/Business/Pages/
ImplementationGP.aspx.
See A/HRC/26/25/Add.1 for a detailed report of the findings.
7
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However, it should be noted that the respondents do not represent a random sample, and
that it is likely that respondents were already familiar with or interested in the business and
human rights agenda, having self-selected to complete the survey.
26.
The responses indicated that the top human rights priorities of respondents were
internal awareness-raising and integration, improving complaints/grievance mechanisms,
building accountability in the business for human rights responsibility and (for large
enterprises in particular) mapping risks. Further, nearly three in five business enterprises
sampled have a public statement of human rights, while 15 per cent of the responding
enterprises that do not have a public statement have an internal statement that is not public.
27.
The questionnaire responses reveal that corporate responsibility or sustainability
departments tend to be leading on human rights within the enterprise. One in two of the
sampled business enterprises stated that they were actively engaged in the human rights
agenda, including by working on their own policies and practices. In that regard, according
to the responses, both internal and external factors/drivers act as motivators to address
human rights.
28.
With respect to challenges faced, half of the business enterprises sampled
highlighted that moving from policy to practice on human rights and addressing human
rights in business relationships were their main challenges. When asked about “eco-system
support”, the most common responses referred to the need for training and educational
opportunities, effective government enforcement of local law and multi-stakeholder
initiatives. Other responses, although less common, referred to public benchmarking and
legal requirements to conduct human rights due diligence.
29.
The Working Group wishes to express its thanks to those business enterprises that
provided responses and to the International Chamber of Commerce, the International
Organisation of Employers, the Global Business Initiative on Human Rights and the
University of Denver for conducting the survey. The results and findings of the
questionnaire will be used by the Working Group to consider its approach to develop a
more detailed mapping of uptake and implementation of the Guiding Principles, to fulfil a
need to track awareness and progress in the dissemination of the Guiding Principles and to
identify common obstacles to business enterprises implementing the corporate
responsibility to respect human rights.
30.
The medium-term goal of the Working Group is to enhance the survey methodology.
Furthermore, the Working Group intends to seek additional resources to conduct a more
extensive survey and build an authoritative repository of information that can help measure
progress, both in quantitative and qualitative terms, in business implementation of the
Guiding Principles. The assessment of businesses performance is a matter of utmost
importance to be considered in the future of the business and human rights field, taking into
consideration the emerging performance indicators and reporting frameworks. 19
31.
In this context, the Working Group has lent its support to the
Assurance Frameworks Initiative and to the Global Reporting Initiative
relevant to its mandate. The Reporting and Assurance Frameworks
consultative initiative seeking to develop voluntary public reporting
19
8
Reporting and
as strategically
Initiative is a
and assurance
See, for example, Damiano de Felice, “Measuring the effectiveness of grievance mechanisms:
between key performance indicators and engagement with affected stakeholders”, entry published on
the Measuring Business & Human Rights website. Available from
http://blogs.lse.ac.uk/businesshumanrights/2014/04/11/damiano-de-felice-measuring-theeffectiveness-of-grievance-mechanisms-between-key-performance-indicators-and-engagement-withaffected-stakeholders/.
A/HRC/26/25
frameworks based on the Guiding Principles, led by Shift, a non-profit centre for business
and human rights, and Mazars, a global audit, accounting and consulting group.20 The
Global Reporting Initiative is a non-profit organization that promotes corporate
sustainability reporting through its voluntary reporting framework, including the
Sustainability Reporting Guidelines, the latest version of which includes some elements of
the Guiding Principles.21 The Working Group encourages all actors in this field to
coordinate their efforts to avoid duplication and build upon each other’s work.
C.
Exploring options to promote increased access to effective remedy
32.
The Guiding Principles recognize the right to an effective remedy for victims of
business-related human rights abuses. A central part of the State duty under the Guiding
Principles entails ensuring effective access to remedy through judicial and non-judicial
mechanisms. Business enterprises that have caused or contributed to adverse impacts
should also provide for or cooperate in remediation through legitimate mechanisms, as part
of their corporate responsibility to respect human rights. 22
33.
Access to effective remedy has procedural and substantive aspects; that is, it speaks to
both mechanisms and outcomes. Grievance mechanisms can take a variety of forms,
including criminal and civil judicial mechanisms; administrative mechanisms (that may
impose sanctions); mechanisms provided by national human rights institutions (including
mediation, adjudicative or semi-adjudicative processes); State-based non-judicial
mechanisms, such as the national contact points supporting the OECD Guidelines for
Multinational Enterprises; mechanisms linked to international or regional financing
institutions; and dialogue-based dispute resolution, including company-level grievance
mechanisms. Customary dispute resolution may also play a role in providing remedy for
grievances related to business conduct.23 The remedies provided by judicial and non-judicial
mechanisms may take a range of substantive forms. In order to be effective, remedy outcomes
should be able to “counteract or make good”24 any human rights harms that have occurred.
34.
The Working Group has continuously sought to identify challenges and lessons
learned with regard to the use and effectiveness of judicial and non-judicial mechanisms,
including through its country visits and communications, the regional and annual forums
and consultations. A key focus has been to explore whether and how non-judicial remedy
mechanisms deliver effective remedy.
35.
Together with the Corporate Social Responsibility Counsellor of Canada, the
Working Group organized an expert workshop in April 2013 to discuss experiences and
challenges with non-judicial grievance mechanisms.25 The Working Group, furthermore,
solicited a project from ACCESS Facility, a global non-profit organization focusing on
company–community dispute resolution processes, to explore how outcomes can be
considered effective.26 In addition, the Working Group reported on the effectiveness of nonjudicial grievance mechanisms for indigenous peoples seeking remedy for business-related
human rights abuses and made a number of recommendations in that regard (A/68/279,
20
21
22
23
24
25
26
http://shiftproject.org/project/human-rights-reporting-and-assurance-frameworks-initiative-rafi.
See the G4 Sustainability Reporting Guidelines, available from
www.globalreporting.org/reporting/g4/Pages/default.aspx.
Guiding principles 22 and 25.
See, for example, A/68/279, paras. 45–47.
See guiding principle 25 and its commentary.
The report from the workshop is included as an addendum to the present report (A/HRC/26/25Add.3).
See www.ohchr.org/EN/Issues/Business/Pages/ActivitiesAndEngagement.aspx.
9
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paras. 32–53). Finally, the Working Group has engaged with experts and civil society
organizations working on non-judicial grievance mechanisms, including the Centre for
Research on Multinational Corporations (SOMO).
1.
Effectiveness of non-judicial grievance mechanisms
36.
The Guiding Principles clarify that judicial remedy remains at the core of access to
remedy, while non-judicial mechanisms may play complementary and supportive roles. The
use of some non-judicial grievance mechanisms, including those linked to international
financial institutions, appears to have increased in recent years.27 This may indicate an
increase in awareness or trust among users and their representatives. It may also indicate a
paucity of alternative options.
37.
Nonetheless, concerns have been raised about the effectiveness of non-judicial
grievance mechanisms, relating to both process and outcomes.28 With regard to process,
concerns include allegations of lack of transparency, lack of ability to enforce judgements,
dependence on cooperation from the business enterprise, lack of monitoring of compliance
with agreed outcomes, lack of capacity on the part of both the mechanism and its users,
structural power imbalances that impair victims’ ability to effectively represent themselves,
lack of access to independent counsel and lack of consultation with victims in designing the
mechanisms.29 Other concerns relate to the inclusion of clauses in the final settlement of the
claim that preclude further civil law action by victims against the business enterprise. 30
38.
With regard to outcomes, concerns include the fact that some remedy mechanisms
may deliver outcomes that are not rights-compatible, for example in providing types of
remedy that are not appropriate to the severity of the harm suffered. Over-reliance on
27
28
29
30
10
See, for example, appendix C of the 2013 annual report of the Compliance Advisor Ombudsman
(CAO) of the International Finance Corporation on the caseload of CAO from 2000 to 2013, which
indicates an increase in the number of cases handled since the inception of the mechanism, and
statistics on the cases handled by national contact points for the OECD Guidelines on Multinational
Enterprises, available from http://oecdwatch.org/cases/statistics. See also the 2013 annual report of
the European Bank for Reconstruction and Development on its Project Complaint Mechanism (p. 4),
which points to a continuing increase in complaints received (available from
www.ebrd.com/downloads/integrity/PCM_AR_2013_final.pdf). See further the European Investment
Bank Complaint Mechanism Activity Report 2009–2012 (available from
www.eib.org/infocentre/publications/all/complaints-mechanism-annual-report-2009-2012.htm), in
which it is noted that complaints more than doubled between 2007 and 2012 and that the number of
admissible complaints rose by a third between 2009 and 2012.
See “SOMO statement to the UN Regional Forum on Business and Human Rights, Medellín, 28–30
August 2013” (available from
www.ohchr.org/Documents/Issues/Business/submissionsColombia/SOMO.pdf) and SOMO,
“Grievance mechanisms fail to give workers access to remedy”, 31 March 2014 (available from
http://somo.nl/news-en/grievance-mechanisms-fail-to-give-workers-access-to-remedy). See also the
oral intervention by OECD Watch at the introductory exchange for interested stakeholders with the
Working Group, 20 January 2012 (available from http://oecdwatch.org/publicationsen/Publication_3742) and the OECD Watch submission to the 2011 Annual Meeting of the National
Contact Points (available from http://oecdwatch.org/publications-en/Publication_3693).
For a more detailed discussion of concerns relating to non-judicial grievance mechanisms, see
A/HRC/26/25/Add.3.
See, for example, MiningWatch Canada, “International condemnation for Barrick Gold’s effort to
seek immunity from legal action by rape victims”, 6 June 2013 (available from
www.miningwatch.ca/news/international-condemnation-barrick-gold-s-effort-seek-immunity-legalaction-rape-victims) and Mines and Communities, “Barrick Gold: North Mara’s problematic
grievance mechanism”, 26 February 2014 (available from
www.minesandcommunities.org/article.php?a=12570).
A/HRC/26/25
certain types of remedy — in particular, monetary compensation — to the exclusion of
other, potentially more transformative outcomes, has also been raised as a concern.
39.
The Guiding Principles stipulate effectiveness criteria for non-judicial grievance
mechanisms pertaining to both process and outcomes. 31 With respect to process, the
Working Group notes that non-judicial grievance mechanisms vary greatly. Not all
mechanisms will be appropriate for all types of human rights harm; for example, dialoguebased processes may not be effective or appropriate when used on their own, without
parallel judicial proceedings, in cases of serious abuses. However, it would be false to
assume that non-judicial grievance mechanisms cannot be effective; most non-judicial
grievance mechanisms have the ability to conduct some level of fact-finding and establish
the nature of the impact and its causes, and will usually be able to issue instructions or
recommendations. Through its consultations and engagements, the Working Group has
observed that non-judicial mechanisms can be successful in transforming corporate–
community relationships.32
40.
As stipulated in guiding principle 31 (f), outcomes and remedies must be rightscompatible. The Basic Principles and Guidelines on the Right to a Remedy and Reparation
for Victims of Gross Violations of International Human Rights Law and Serious Violations
of International Humanitarian Law stipulate that remedy should include: (a) equal and
effective access to justice; (b) adequate, effective and prompt reparation for harm suffered;
and (c) access to relevant information concerning violations and reparation mechanisms
(sect. 11). The Basic Principles further provide that reparations should be proportional to
the actual harm caused and should consider restitution, rehabilitation, satisfaction, including
disclosure and apologies, and guarantees of non-repetition, in addition to compensation.
These criteria are also increasingly considered in the context of abuses that do not amount
to gross violations.
41.
When applied to specific situations, the Basic Principles will result in a range of
outcomes, the elements of which may vary greatly. What constitutes adequate, effective and
prompt reparation for harm in the view of the victim will depend on a number of subjective
elements, including the personal preferences and circumstances of the victim, the specific
harm suffered and the local context and culture. Beyond the Basic Principles, it may thus
not be possible to identify common elements of effective remedy outcomes. The Working
Group also notes that remedy processes and outcomes are interdependent and intertwined,
and that they should be seen in tandem. For example, victims’ experience with a process
may greatly influence whether they determine the outcome to be satisfactory or rightscompatible. Similarly, the way a mechanism is designed may give preference to certain
types of outcomes, for example, monetary compensation. A lack of capacity or perception
of bargaining power on the part of victims may also influence perceptions of what
constitutes an effective remedy outcome. These circumstances pose challenges in assessing
whether a mechanism has provided for remedy that is effective.33
42.
The Working Group considers that there is a continued need to further document
practices of and experiences with non-judicial grievance mechanisms in order to assess the
performance of such mechanisms over time in delivering effective remedy, to promote
accountability, and to increase learning on how grievances can be most effectively
addressed. In particular, more research is needed to establish useful indicators to enable
business enterprises, mechanisms, civil society and other stakeholders to evaluate the
31
32
33
See guiding principle 31.
See A/HRC/26/25/Add.3 and A/HRC/26/25/Add.5. See also A/68/279, footnote 37.
Basic Principles, sects. 12 to 23.
11
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effectiveness of processes and outcomes. 34 Also needed is more guidance on evaluating
non-judicial grievance mechanisms against the effectiveness criteria of guiding principle
31, in order to assess how different remedy processes are suited to different grievances, as
well as ways to improve the performance of such mechanisms.
2.
Access to effective judicial remedy
43.
The Working Group considers that effective judicial mechanisms are at the core of
ensuring access to remedy and that States should take steps to reduce or eliminate legal and
practical barriers in that regard.35 The legal and practical barriers facing victims seeking to
bring claims through the courts have been comprehensively documented. 36 Those barriers
continue to prevent victims from gaining access to effective remedy. The Working Group
encourages States to map current legislation and practices in relation to corporate liability
for involvement in human rights abuses, as part of their efforts to implement the Guiding
Principles.
44.
In terms of the effectiveness of judicial remedy outcomes, the shortage of successful
cases and the relatively high number of cases that are settled out of court37 mean that there
is a lack of available information. As noted above, remedy outcomes and processes are
interrelated; for example, where victims face lengthy delays in court proceedings, remedy
may not be perceived as being effective, even if victims are ultimately successful in
obtaining compensation.
45.
Towards the end of his mandate, the former Special Representative of the SecretaryGeneral on the issue of human rights and transnational corporations and other business
enterprises, John Ruggie, called for further clarification of standards relating to appropriate
investigation, punishment and redress where business enterprises cause or contribute to
gross human rights abuses, as well as of what constitutes effective, proportionate and
dissuasive sanctions in such cases. The Working Group has also reflected on how to
approach corporate liability for gross human rights abuses,38 and in 2013 supported the
Office of the United Nations High Commissioner for Human Rights (OHCHR) in
commissioning an independent study to examine the effectiveness of domestic judicial
34
35
36
37
38
12
See A/HRC/26/25/Add.3.
See guiding principle 26 and commentary.
See, for example, A/HRC/11/13/Add.1. In the context of gross human rights abuses, see: Jennifer
Zerk, “Corporate liability for gross human rights abuses: towards a fairer and more effective system
of domestic law remedies”, report prepared for the Office of the United Nations High Commissioner
for Human Rights (available from www.ohchr.org/EN/Issues/Business/Pages/OHCHRstudyon
domesticlawremedies.aspx). See also Amnesty International, Injustice Incorporated (London, 2014),
available from www.amnesty.org/en/library/asset/POL30/001/2014/en/33454c09-79af-4643-9e8e1ee8c972e360/pol300012014en.pdf, and Gwynne Skinner et al., The Third Pillar (International
Corporate Accountability Roundtable et al., 2013), available from
http://accountabilityroundtable.org/wp-content/uploads/2013/02/The-Third-Pillar-FINAL.pdf.
Zerk, “Corporate liability”, p. 94.
See, for example, the keynote statement by the Working Group at the 2013 Regional Forum on
Business and Human Rights for Latin America and the Caribbean, available from
www.ohchr.org/Documents/Issues/Business/submissionsColombia/AlexGuaqueta_LACForumopenin
g_speech_en.pdf; the closing statement of the Working Group Chairperson at the 2013 annual Forum
on Business and Human Rights, available from www.ohchr.org/Documents/Issues/Business/
ForumSession2/Statements/closingChairpersonWGForum2013.pdf; and the Working Group brief on
its approach to urgent actions and allegation letters, available from www.ohchr.org/Documents/
Issues/Business/WGBrief_Communications_with_States_and_non-State_actors_12.03.2014.pdf.
A/HRC/26/25
mechanisms in relation to business involvement in gross human rights abuses, including
legal and practical barriers to access to justice. 39
46.
The study found that existing arrangements for preventing, detecting and remedying
cases of business involvement in gross human rights abuses are not working well: victims
in many cases fail to get effective redress and face numerous legal and practical barriers to
effective access to the courts, States face uneven patterns of use of remedial mechanisms,
and business enterprises in many cases operate in an environment of significant legal
uncertainty. The study recommends that a consultative, multi-stakeholder process be
launched, aimed at clarifying key issues of principles and policies, and that a process to
identify models of best State practice in relation to the functioning of domestic judicial
mechanisms be established. The Working Group supports the recommendation and will be
contributing to the process.
3.
Discussions on the desirability of an international legal instrument on business and
human rights
47.
In March 2014, the Working Group participated in a workshop hosted by the
Governments of Ecuador and South Africa to explore options for paving the way for a
legally binding instrument on business and human rights. As expressed by some
stakeholders during the workshop, the underlying assumption behind the formulation of an
international treaty is that such an instrument is best positioned: (a) to correct inadequacies
in existing bilateral and multilateral investment treaties and arbitration proceedings that
settle disputes related to corporate impact, which often do not leave enough space for States
to protect their citizens against adverse corporate impact, while protecting the interests of
investors; (b) to provide for legal accountability and remedy where transnational
corporations are involved in human rights abuses and where States have been reluctant to
adopt appropriate prevention and remedy measures; and (c) to provide for a clear division
of responsibilities between “home” and “host” States.
48.
Those are legitimate expectations. The Working Group understands the impatience
on the part of some stakeholders with the pace of implementation of the Guiding Principles,
in particular with respect to access to remedy. However, in the view of the Working Group,
a careful review should be conducted before embarking on a standard-setting process as to
whether and how the factors that impede State implementation of existing international
human rights obligations in this space would be overcome by a new international legal
instrument on business and human rights. Those discussions should be informed by specific
research on the precise nature of existing implementation gaps.
49.
The Working Group recalls that the “Protect, Respect and Remedy” Framework and
the Guiding Principles are derived directly from existing legal obligations that require
States to ensure that human rights are protected against abuse by all business enterprises,
including transnational corporations as well as national business enterprises. The Guiding
Principles elaborate on the practical implications of those obligations.
50.
Great care should be taken to guard against the risk of reversing or undermining the
clarity and the regulatory and political momentum gained so far by the “Protect, Respect
and Remedy” Framework and the Guiding Principles. The Guiding Principles provide a
holistic approach for prevention and redress, a formula that equips stakeholders to tackle
the challenges of governance gaps created by globalization, and a platform for multiple and
mutually reinforcing avenues to shape corporate conduct via human rights treaties and
39
See Zerk, “Corporate liability”.
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market regulation. This is known as the “smart mix” of measures — national and
international, mandatory and voluntary — to foster business respect for human rights.
51.
Irrespective of whether States choose to pursue the path of an international legally
binding instrument, in the view of the Working Group, the international community already
has conceptual and practical building blocks in the Guiding Principles that can move
practice forward in both the areas of prevention and remedy. Given that any treaty-making
process is likely to take a number of years, there is an urgent existing need to address gaps
in prevention and access to remedy in the “here and now”. One avenue for States would be
to develop and implement national action plans with provisions for addressing the legal and
practical barriers to access to remedy for victims. Such efforts are urgently needed and will
continue to be relevant in the context of a potential legally binding instrument, in order to
ensure effective implementation of relevant standards and commitments.
D.
Reflections on the annual Forum on Business and Human Rights
1.
Annual Forum
52.
The first two annual forums on business and human rights, mandated by the Human
Rights Council, took place in 2012 and 2013 under the guidance of the Working Group.40
The forums are the largest global gatherings to date to discuss progress in and challenges
with implementing the business and human rights agenda and the Guiding Principles. Each
Forum has drawn high numbers of participants: in 2012, close to 1,000 participants from
over 80 countries registered, and in 2013, about 1,500 participants from over 100 countries
registered. In that respect, the Working Group notes that the Forum has been successful in
attracting and maintaining interest from stakeholders globally and including new audiences
in shared learning and in policy dialogues.
53.
The agendas of the forums focused on taking stock of progress, challenges with
respect to implementing the three pillars of the Guiding Principles, and broadening the
number of multipliers and catalysts. The Working Group considers that the forums have
served those purposes, and have contributed to disseminating lessons learned and good
practices on the implementation of the Guiding Principles to a wider audience. Issues that
have been discussed include: impacts on particular stakeholder groups, such as children,
indigenous peoples and other groups that may be at risk of increased vulnerability to
adverse impacts; challenges and practice in specific sectors, such as agribusiness, the
extractive sector, the security sector, the financial sector and the information and
communications technology sector; and cross-cutting issues such as due diligence,
reporting, corporate governance, access to judicial and non-judicial remedy, investment
policies, and human rights risks in supply chains.
54.
The discussions during the forums indicate the relevance of the Guiding Principles
in providing an overarching common foundational framework. A number of States and
business enterprises have taken significant steps towards effective implementation of the
Guiding Principles, and many civil society organizations are using the Guiding Principles
effectively in their advocacy and accountability work. By allowing for the sharing of good
practices and the discussion of challenges and information on specific cases, the forums
have helped build capacity and awareness among stakeholder groups.
55.
With regard to the 2014 Forum, the Working Group has reflected on lessons and
trends from the first two forums. For example, the Working Group notes that some of the
40
14
All information and documentation related to the 2012 and 2013 annual forums is available from
www.ohchr.org/EN/Issues/Business/Forum/Pages/ForumonBusinessandHumanRights.aspx.
A/HRC/26/25
discussions during the 2013 Forum were not constructive to engagement across stakeholder
groups. The Forum is a space where civil society and affected stakeholders will voice
legitimate concerns of urgent and serious human rights abuse involving business
enterprises; however, it should also be a space that encourages the sharing of lessons on
incremental policy steps and challenges. The Working Group therefore calls on all
stakeholders, including States, business enterprises and associations and civil society
organizations, to jointly strive to maintain a space for constructive exchange, and to
continue to build common understanding of the state of play, current gaps and challenges
and ways forward.
56.
Another key challenge is the need to enhance the level of business participation in
the Forum. Some of the business enterprises that have participated are major economic
actors, in terms of size and global reach. Many of those enterprises are also at the forefront
of innovating on and implementing the Guiding Principles. However, greater engagement
from business is needed to advance in the formulation of solutions, including in relation to
remedy. Also, the Guiding Principles need to reach thousands of enterprises across the
globe. Raising awareness among the business community of the value of reaching scale in
the implementation of the Guiding Principles is a strategic consideration not only for the
Forum, but for the wider business and human rights agenda.
57.
The Working Group also notes the calls to enhance the participation of victims in
the Forum. It remains committed to ensuring that the perspective of victims is represented,
and is exploring ways of ensuring effective participation of affected stakeholders through
dialogue with civil society organizations. It is worth noting that the second Forum enjoyed
high international civil society participation, with that stakeholder group accounting for
more than 550 of the registered participants (more than 700, if including academics). While
the regular budget of the United Nations funds the travel of 15 participants to the Forum,
the Working Group and OHCHR managed to secure additional funds to support the
participation of more than 40 representatives of civil society, indigenous peoples, trade
unions, other affected stakeholders and academics. Broadening participation to include
other civil society groups and more stakeholders who are directly affected by negative
corporate behavior, as well as increasing the participation of businesses and of stakeholders
from outside of Europe and North America, is important for future forums.
58.
While the forums have highlighted progress and challenges across sectors and
issues, the Working Group is responding to calls from stakeholders to narrow the thematic
focus of the 2014 Forum, to allow for more in-depth discussions around core issues. The
2014 Forum will have a particular focus on national action plans to implement the Guiding
Principles, which includes the issue of access to effective judicial and non-judicial remedy.
The 2014 Forum will also continue to offer training sessions on the Guiding Principles,
single-stakeholder meetings and platforms for sharing tools and examples of practice.
2.
Regional Forum
59.
In 2012, the Working Group announced its objective of holding regional forums on
business and human rights as a way to promote the effective and wide dissemination and
implementation of the Guiding Principles. The first Regional Forum on Business and
Human Rights for Latin America and the Caribbean, organized by the Working Group in
collaboration with the United Nations Development Programme and the Government of
Colombia, was held on 28 and 29 August 2013 in Colombia.41 About 400 people from 27
countries took part.
41
The summary report of the regional forum is contained in A/HRC/26/25/Add.2.
15
A/HRC/26/25
60.
The Regional Forum was successful in bringing together representatives of civil
society, business enterprises and government that would have otherwise not engaged with
each other in their own local contexts, and in triggering concrete implementation efforts.
Since the Regional Forum, the Working Group has conducted follow-up engagements with
the Inter-American Commission on Human Rights, the Organization of American States,
regional State-based and private organizations in Central America, regional and subregional
representatives of United Nations agencies and international organizations, including the
International Labour Organization, and representatives from all stakeholder groups in
Colombia, Costa Rica, Guatemala and Peru to support concrete implementation efforts.
61.
Building on the positive experience, the Working Group is collaborating with the
African Union Commission in planning a regional forum to be held in Africa in 2014.The
main purpose of the Africa regional forum will be to engage key local actors and
stakeholders to promote multi-stakeholder dialogue and cooperation on business and human
rights, and identify challenges and opportunities for promoting wide and comprehensive
implementation of the Guiding Principles in Africa. The regional forum will offer
opportunities for capacity-building on the Guiding Principles, and will seek to reinforce
ongoing local efforts and spur new action with regard to preventing and addressing adverse
impacts of business activity, as a key foundation for sustainable development and the
realization of human rights for all. It will also address issues of particular relevance to the
regional context, including the agribusiness and extractive sectors.
E.
Advocacy
62.
The Working Group considers that an important part of its mandate is to use its public
platform to influence relevant stakeholders to affect specific policy change in line with the
Guiding Principles, and to bring attention to situations or issues of concern. Some examples
of how the Working Group has engaged in advocacy activities are provided below.
63.
The Working Group has advocated for the integration of the Guiding Principles in
the post-2015 development agenda, together with other mandate holders and through direct
outreach. The Working Group considers that the new global development framework needs
to reflect the duty of States to establish accountability mechanisms for ensuring and
monitoring business respect for human rights, including effective access to remedy
mechanisms when adverse impacts occur. As business enterprises are increasingly seen as
partners in global development, there is a pressing need to ensure that such efforts are
undertaken based on human rights due diligence, and that effective accountability
mechanisms are put in place.
64.
The Working Group has also issued public statements in relation to specific
situations of adverse human rights impacts linked to business activities. For example, in the
aftermath of the collapse of the Rana Plaza factory building in Bangladesh, the Working
Group issued a press statement urging international clothing brands to work together with
the Government of Bangladesh, international organizations and civil society to address
working conditions in the garment sector.42 In follow-up, the Working Group hosted a
public discussion on human rights in global garment supply chains to discuss lessons
learned from that event with respect to the implementation of the Guiding Principles in
42
16
OHCHR, “UN expert body urges international brands to work with Bangladesh to prevent another
garment disaster”, press release dated 8 May 2013. Available from
www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13309&LangID=E.
A/HRC/26/25
complex global supply chains, including with respect to human rights due diligence and
access to remedy for victims.43
65.
Together with other mandate holders, the Working Group issued a press release to
urge the halting of a proposed mega-steel project in eastern India, which would allegedly
lead to the displacement of more than 22,000 people.44
F.
Communications
66.
The Working Group is mandated to seek and receive information from all relevant
sources, including Governments, transnational corporations and other business enterprises,
national human rights institutions, civil society and rights holders.45 Information has been
received through the special procedures communications procedure, through other Working
Group activities, for example meetings during country visits, and through the annual and
regional forums. The Working Group has used the information to inform its work and
strategy, to identify barriers to the effective implementation of the Guiding Principles and
gaps in the protection of human rights in the context of business activities and to inform
recommendations made to States, business and other actors on the implementation of the
Guiding Principles.
67.
The Working Group has also sent a number of communications to States and
business enterprises, approaching those communications strategically to introduce the core
concepts, obligations, responsibilities and expectations set out in the Guiding Principles.46
The Working Group expresses its thanks to those who bring information to its attention,
which is essential to continue to develop a firm understanding of the adverse impacts of
business activities on human rights and the key challenges to rights holders in obtaining
access to remedy. The Working Group continually revisits its strategy and activities in the
light of the information provided, and addresses communications on emblematic cases,
where the issues at stake and the rights at risk of infringement can be applied to a number
of other similar situations around the world.
68.
Within this premise, and over the course of its mandate, the Working Group has sent
communications to States and business enterprises across four regions, 16 of which have
been made public.47 The communications, which have been sent jointly with other special
procedure mandate holders, have addressed issues ranging from the alleged forced eviction
of residents and adverse impacts on human rights linked to the construction of a steel plant
to the alleged unaffordability of water and sanitation for vulnerable groups linked to the
privatization of water and sanitation services and the alleged negative impact on lowest
incomes of rising water costs leading to water poverty.
69.
One trend that stands out in the communications received is related to human rights
defenders. Communications have addressed alleged murders of, attacks on and acts of
intimidation against human rights defenders who campaign against the adverse impacts of
extractive company operations and allegations regarding the impact of mining and
43
44
45
46
47
See www.ohchr.org/Documents/Issues/Business/Session5/WGBHR20JunePanelConceptNote.pdf and
www.ohchr.org/Documents/Issues/Business/Session5/WG5SessionPanelDiscussion.pdf.
OHCHR, “India: urgent call to halt Odisha mega-steel project amid serious human rights concerns”,
press release dated 1 October 2013. Available from www.ohchr.org/EN/NewsEvents/Pages/
DisplayNews.aspx?NewsID=13805&LangID=E. See also A/HRC/25/74, pp. 16 and 18.
Human Rights Council resolution 17/4, para. 6 (b).
See Working Group brief of March 2014, available from www.ohchr.org/Documents/Issues/Business/
WGBrief_Communications_with_States_and_non-State_actors_12.03.2014.pdf.
Ibid. The brief includes a summary of each public communication.
17
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hydroelectric projects on indigenous peoples. The Working Group is gravely concerned
about a disturbing increase in attacks and acts of intimidation by State and non-State actors
against those who protest against the actual and potential adverse impacts of business
operations and major development projects.
70.
The Working Group also, together with other special procedure mandate holders,
issued a press release linked to a communication.48
71.
In its communications, and with regard to the State duty to protect, the Working
Group has raised questions relating to: the extent to which a State has implemented the
Guiding Principles and fulfilled its obligation to protect against human rights violations,
including those perpetrated by third parties; what policies and measures have been put in
place to ensure that business enterprises respect human rights; and what steps the
Government has taken to prevent, investigate, punish and redress human rights abuse
within its territory and/or jurisdiction by business enterprises. In relation to large projects,
the Working Group has specifically queried the extent to which States have consulted with
potentially affected communities and whether any environmental and social impact
assessments have been undertaken.
72.
The Working Group has also sent communications to home States of business
enterprises linked to allegations, and specifically queried what measures the State has taken
to prevent, investigate, punish and redress human rights abuse by business enterprises
within its territory and/or jurisdiction; what policy, legal, regulatory and/or adjudicatory
measures have been taken to encourage or require that business enterprises domiciled in its
territory or jurisdiction meet their responsibility to respect human rights throughout their
operations; whether guidance has been provided to business enterprises on how to respect
human rights throughout their operations; and what judicial, administrative, legislative or
other steps have been taken to ensure that victims of business-related human rights abuse
by companies domiciled in that State have access to remedy.
73.
With regard to the corporate responsibility to respect human rights, the Working
Group has queried business enterprises on how they have sought to meet their responsibility
to respect human rights as detailed in the Guiding Principles and, more specifically, on how
they have sought to identify and assess, including through meaningful consultation with
potentially affected groups, any actual or potential adverse human rights impacts with
which they may be involved either through their own activities or as a result of their
business relationships.
74.
Eleven responses to these communications have been received, providing valuable
clarifications on the allegations and on the status of understanding and implementation of
the Guiding Principles across a range of States and business sectors.49 In the view of the
Working Group, these communications and press releases can be important tools to trigger
a response from national authorities and draw the attention of the media, the public and the
international community to a situation of concern. The Working Group recalls that the main
purpose of the communications procedure is to obtain clarification in response to
allegations of violations with a view to ensuring, along with the Government and other
stakeholders concerned, the protection of human rights. The Working Group takes this
opportunity to thank those who have provided clarification in response to allegations, and
urges all to whom the Working Group sends a communication to engage in this procedure.
48
49
18
See footnote 44 above.
All responses are made public in the joint communication reports, available from
www.ohchr.org/EN/HRBodies/SP/Pages/CommunicationsreportsSP.aspx.
A/HRC/26/25
G.
Capacity-building and guidance on the implementation of the Guiding
Principles
75.
Over the course of its mandate, the Working Group has received more than 200
requests to provide advice and guidance on the Guiding Principles, to raise awareness and
to help initiate processes; the requests have come from all regions of the world and from all
stakeholder groups. The Working Group has sought to offer guidance wherever possible
within its mandate, capacity and resources, and particularly where it has identified that
further clarification on the application of the Guiding Principles is required.
76.
Lack of capacity within States, civil society and business enterprises, in particular
small and medium-sized enterprises, is a continuing barrier to the effective implementation
of the Guiding Principles. 50 In that respect, the Working Group considers that the creation
of a global fund to support capacity-building efforts among all stakeholders is a priority for
the business and human rights agenda. 51
77.
There has been particular demand for further guidance in the application of the
Guiding Principles to the financial sector. The Working Group is co-chairing a process
launched by the OECD Working Party on Responsible Business Conduct to develop
guidance for the financial sector on the application of the OECD Guidelines for
Multinational Enterprises. The process is aimed at producing guidance on key issues, such
as due diligence, use of leverage and remedy processes for different parts of the financial
sector, through case studies. The Working Group has also provided OECD with guidance
on this issue in response to a specific request. 52
78.
The Working Group has participated in meetings and workshops on the Voluntary
Principles on Security and Human Rights53 to provide advice on the alignment of the
Voluntary Principles with the Guiding Principles with respect to issues such as due
diligence and access to remedy.
79.
The Working Group has also explored the issue of “collective” or “cumulative”
impacts on human rights, that is, situations where an individual business enterprise’s impact
may not constitute an adverse human rights impact, but where it is combined with the
impacts of other business enterprises in the same sector or region, human rights are
adversely affected. To advance the understanding of that issue, the Working Group
convened an expert round-table meeting in 2013 to discuss approaches to identifying and
managing specific collective impacts, including boom town effects and impacts associated
with industrial parks and with collective (over)use of water and land.54
80.
At the national level, the Working Group has provided guidance and/or technical
assistance to State authorities, business enterprises and associations, civil society,
indigenous peoples’ representatives and other stakeholders, upon request, including by
convening or participating in technical workshops and policy discussions. For example, in
2013 the Working Group provided guidance to government officials in Canada on State
50
51
52
53
54
See A/HRC/21/21 and Corr.1 and A/HRC/26/25/Add.1.
See the position of the Working Group on a United Nations-linked global fund on business and
human rights. Available from www.ohchr.org/EN/Issues/Business/Pages/2014Activities.aspx.
Available from www.ohchr.org/Documents/Issues/Business/LetterResponseToOECD.pdf.
See www.voluntaryprinciples.org/.
Expert meeting convened by the Working Group, 8 May 2013, Atlanta, United States of America;
unofficial meeting report available from www.ohchr.org/EN/Issues/Business/Pages/2013Activities.aspx.
Outputs from this meeting were also included in a “dilemmas” forum created by the Global Compact
Initiative, available from http://human-rights.unglobalcompact.org/dilemmas/cumulativeimpacts/#.Uz7B8KiSzGA.
19
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implementation of the Guiding Principles, and provided guidance on aspects of the
implementation of the Guiding Principles to academic experts, businesses, civil society and
the Canadian Human Rights Commission. The Working Group also provided guidance to
stakeholders in Cambodia on the application of the Guiding Principles in the agribusiness
sector, through engagement with the Global Compact local network, with the support of
OHCHR. In Guatemala, the Working Group provided capacity-building to State authorities,
the Chamber of Commerce, the Chamber of Mining, business enterprises, civil society
representatives and indigenous peoples’ organizations, with the support of OHCHRGuatemala. The Working Group also engaged in the elaboration by the Council of Europe
of a non-binding instrument on business and human rights with a view to addressing gaps
in the implementation of the Guiding Principles at the regional level. 55
81.
In its 2013 report to the General Assembly (A/68/279), the Working Group explored
the challenges faced in addressing the adverse impacts of business-related activities on the
rights of indigenous peoples through the lens of the Guiding Principles. The focus of the
report was on how the Guiding Principles could bring clarity to the roles and
responsibilities of States, business enterprises and indigenous peoples when addressing
those impacts. The Working Group also explored the implications of the State duty to
protect, the corporate responsibility to respect, and obligations relating to access to
effective remedy in the context of impacts on indigenous peoples, including ways in which
indigenous peoples may be particularly vulnerable to adverse human rights impacts from
business activities, and identified examples of good practice.
82.
The Working Group also participated in the advisory committee on the process of
the European Commission to develop voluntary guidelines on the implementation of the
Guiding Principles in the oil and gas, employment and recruitment, and information and
communications technology sectors.
IV. Looking ahead
83.
Pursuant to its mandate to advance in the implementation of the Guiding Principles,
the Working Group focused its strategy in 2012–2013 on the dissemination and promotion
of their effective and comprehensive implementation. It sought to reach new audiences,
multipliers and catalysts, which included State-level and international-level policymakers,
business decision makers and civil society organizations. Today there is greater awareness
of the Guiding Principles and greater clarity regarding the opportunities for further
operationalization within specific industry sectors, regions, issue areas and institutions.
84.
At its seventh session, the Working Group decided to prioritize advocacy for and
guidance in the formulation and implementation of national action plans and efforts to
promote the incorporation of the Guiding Principles into relevant policy frameworks of
international institutions. The Working Group will continue to collaborate with OECD to
produce further due diligence guidance for the financial sector. In its first report to the
Human Rights Council (A/HRC/20/29), the Working Group acknowledged the strategic
importance of that sector and the effect it could potentially have in shaping the incentives
and disincentives of both business and State actors with regard to human rights. The
Working Group also considers multilateral public financial institutions as key actors and
encourages the alignment of their social safeguards and grievance mechanisms with the
Guiding Principles.
55
20
See www.coe.int/t/dghl/standardsetting/hrpolicy/Other_Committees/HR_and_Business/Default_en.asp.
A/HRC/26/25
85.
Furthermore, the Working Group will continue to prioritize the exploration of
practical ways to increase access to judicial and non-judicial remedy. In that respect, the
Working Group will provide advice and guidance and facilitate multi-stakeholder dialogues
on concrete aspects of effective remedy, including judicial remedy and the issue of
corporate accountability and liability.
86.
Finally, in the new work stream, “building blocks for a robust human rights regime”,
the Working Group aims to advocate further the incorporation of the Guiding Principles
into the work of international and regional monitoring of bodies, including courts, human
rights commissions and United Nations treaty bodies, and processes, such as the universal
periodic review, and explore key sub-themes, such as the implementation of the Guiding
Principles in conflict zones, opportunities for businesses to contribute to the prevention of
harm, and the implication of the Guiding Principles in those contexts for corporate
complicity in human rights violations.
87.
These priority areas are designed to seek and encourage action to increase the
number of States and business enterprises implementing the Guiding Principles. Greater
scale is needed to create the political and economic incentives for the concrete
implementation of the Guiding Principles. That should be complemented with targeted
capacity-building within States — a task that all stakeholders need to continue to carry out.
V. Conclusions and recommendations
A.
Conclusions
88.
Significant efforts have been undertaken to implement the Guiding Principles
on Business and Human Rights since their endorsement by the Human Rights Council
in 2011.
89.
The Working Group has supported dissemination and implementation efforts
by reaching out to new audiences, multipliers and catalysts. It has also contributed to
the provision of a space for constructive dialogue on progress and challenges around
the implementation of the Guiding Principles, both internationally and regionally; to
the construction of a stronger business and human rights regime, including through
the development of national action plans on business and human rights; and to the
enhancement of the understanding of the notion of effective remedy for adverse
human rights impacts linked to business activities.
90.
A solid and shared understanding of the distinct but complementary duties and
responsibilities of States and business enterprises, as well as their practical
implications, combined with predictability in implementation and a constructive
multi-stakeholder approach, are required to continue the advances made in
addressing adverse business-related human rights impacts.
91.
Despite the significant efforts made to implement the Guiding Principles, key
challenges remain, including with respect to broadening dissemination, reaching scale
in implementation, building trust between stakeholders and overcoming barriers to
effective remedy. There is a growing gap between the pace of implementation and the
expectations of civil society and affected stakeholders.
92.
The Working Group is concerned that the remaining challenges impede
progress in the implementation of the Guiding Principles. That poses significant risks
to the continued broad-based support for the Guiding Principles, which is crucial for
their continued legitimacy as the authoritative global framework for business and
human rights. For that reason, the Working Group urges that attention and efforts
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towards the implementation of the Guiding Principles be scaled up in order to more
effectively prevent and address adverse business-related human rights impacts.
93.
There are no easy solutions for addressing the multifaceted and complex
challenges of business and human rights, or for providing the effective remedy and
accountability that victims are legitimately seeking as a matter of urgency. Addressing
those challenges and effectively managing business-related human rights risks
requires sustained attention and a “smart mix” of regulatory and policy approaches
and incentives. The Working Group remains committed to playing its part in
supporting and, where appropriate, leading those efforts.
B.
Recommendations
94.
States should:
(a)
Include business and human rights issues and efforts to promote the
implementation of the Guiding Principles in the universal periodic review process;
(b)
Engage with the Working Group in its effort to develop guidance on the
process, essential substantive elements and review of national action plans to
implement the Guiding Principles, and consider road-testing that guidance and
engaging in a process of regular sharing of lessons and peer review with a view to
speeding up progress in implementation;
(c)
Ensure the protection of human rights defenders who raise awareness of
the impacts of business activities, especially large infrastructure and productive
development projects, and communicate to business enterprises that they also need to
respect the rights of human rights defenders;
(d)
Support the process led by the Secretary-General to explore the
feasibility of establishing a global fund aimed at addressing the acute capacity gaps
and challenges in the area of business and human rights;
(e)
Support the process envisaged in the OHCHR-commissioned study on
corporate liability for gross human rights abuses to initiate a multi-stakeholder
process to clarify key issues of policy and principles, and a process to identify best
practice at the State level;
(f)
As a matter of priority, review access to remedy for victims of businessrelated adverse human rights impacts, including legal and practical barriers to
accessing courts, and the availability and effectiveness of State-based non-judicial
mechanisms;
(g)
Provide appropriate public information on the performance of key nonjudicial and judicial mechanisms and on the use of administrative sanctions in cases of
corporate breaches, and the extent to which they deliver effective remedy in terms of
process and outcomes;
(h)
Consider the requests of the Working Group for invitations to conduct
country visits.
95.
Business enterprises should:
(a)
Participate in and support the development of national action plans to
implement the Guiding Principles;
(b)
Encourage industry and
implementation of the Guiding Principles;
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initiatives
on
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(c)
Participate in the annual Forum on Business and Human Rights and
other meetings and processes led by the Working Group to support informationsharing of lessons learned on implementation practices and challenges, and engage in
the dialogue with other stakeholders on how to promote wider and effective
implementation of the Guiding Principles;
(d)
Participate in the Working Group-led surveys to measure the level of
global uptake of the Guiding Principles;
(e)
Report and communicate individually and at the level of business
associations on the overall progress in the implementation of the Guiding Principles
and on the performance of operational-level grievance mechanisms.
96.
Civil society organizations are encouraged to:
(a)
Continue to make full use of existing international and regional human
rights mechanisms, including the United Nations, its mechanisms and representatives
in the field of human rights, to raise business-related human rights issues;
(b)
Continue to engage with the Working Group in dialogue and
information-sharing on business and human rights challenges through communication
in advance of the country visits of the Working Group, participation in the annual
Forum and in other meetings and consultation processes led by the Working Group,
and regular communication procedures.
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